Deut 22:6 If, along the road, you chance upon a bird’s nest, in any tree or on the ground, with fledglings or eggs and the mother sitting over the fledglings or on the eggs, do not take the mother together with her young. 22:7 Let the mother go, and take only the young, in order that you may fare well and have a long life.[1] (NJPS)

Since this commandment acknowledges the parent-child relationship in animals, it is often thought of as a complement to the prohibition against slaughtering an animal and its offspring on the same day (Lev 22:28).

וְשׁוֹר אוֹ שֶׂה אֹתוֹ וְאֶת בְּנוֹ לֹא תִשְׁחֲטוּ בְּיוֹם אֶחָד.

Regarding an ox or a sheep, you shall not slaughter it together with its young on the same day.

The two commandments occur together, for example, in the Palestinian Talmud’s commentary on m. Ber. 5:3. The Mishnah legislates that we silence a precentor who prays: על קן צפור יגיעו רחמיך “Upon the bird’s nest does your mercy extend.” The Talmud includes the following explanation (j. Berachot 5:3).

R. Yose son of R. Bun: They do not do well, for they make the measures of the Holiness, blessed be He, mercy. And those who translate (the verse Lev 22:28), “My people, children of Israel, just as I am merciful in heaven, so you be merciful on earth.[2] A cow or sheep, it and its young, do not slaughter the both of them on the same day,” they do not do well, because they make the measures of the Holiness, blessed be He, mercy.[3]

It is not altogether clear what R. Yose means when he objects to these liturgical formulations for “mak[ing] the measures of the Holiness, blessed be He, mercy.” The Bavli parallel (b. Ber. 33a) includes an explanatory addendum:

מפני שעושה מדותיו של הקדוש ברוך הוא רחמים ואינן אלא גזירות.

Because he makes the measures of the Holiness, blessed be He, mercy, and they are nothing other than decrees.

On the Bavli’s understanding, R. Yose means to condemn the liturgical formulations for something like reducing the force of the commandments from decrees to sentiments. But the addendum (“and they are nothing other than decrees”) does not necessarily reflect R. Yose’s intent. Notably, the Bavli’s formulation is problematic on its face: Why should it be God’s “measures” that are decrees, rather than God’s commandments? It is entirely possible that for R. Yose in the Yerushalmi, the problem with the liturgical formulation is not that it misunderstands the nature of divine law, but that it overemphasizes God’s mercy, at the expense of other attributes, in particular anger.[4]

But the plain sense of the commandments in question lies, in any case, with the liturgical formulations to which R. Yose objects: These laws do indeed revolve around mercy.[5] Our aim here is to specify more precisely the logic of the commandments, and especially that of shooing away the mother bird, by means of a close examination of the wording of Deut 22:6.

Mother Together with Her Young:
על as “together with” in the Bible

The preposition על occurs twice in Deut 22:6 to describe the relationship between the mother bird and her young, first in the statement of the facts, then in the formulation of the prohibition.

והאם רבצת על האפרחים או על הביציםלא תקח האם על הבנים

In the first phrase, the NJPS renders על as “over” or “on”: “And the mother sitting over the fledglings or on the eggs.” In the second, it translates the preposition differently: “Do not take the mother together with her young.” The rendering of the preposition in the first phrase accords with its ordinary sense, but whence the translation of the second phrase?

The preposition על carries the meaning “together with” in various places, e.g., Exod 35:22 “And the men came together with the women (ויבאו האנשים על הנשים).” It links mother to offspring in Job 38:32, in which God challenges Job:

הֲתֹצִיא מַזָּרוֹת בְּעִתּוֹוְעַיִשׁ עַל בָּנֶיהָ תַנְחֵם

Can you bring out Mazzaroth (a constellation) in its time?And the Bear together with its sons, can you lead them?

A Martial Idiom
The most important instances of this usage, for our purposes, occur in the phrase אם על בנים “mother together with her young” in Genesis and Hosea.[6]

But the din of war shall arise in your own people, and all your fortresses shall be ravaged, as Beth-arbel was ravaged by Shalman on a day of battle, when mother together with her young was dashed to death.[7]

The words אם על בנים evidently serve as a martial idiom that describes a cruel form of warfare in which no quarter is given, and the attackers slaughter mothers along with their children.[8]

The notion of “togetherness” conveyed by this usage is vague. It is not impossible that the usage means to evoke an image of the mother slaughtered atop the corpses of her children, or, less strongly, of the mother dying after she has witnessed her children’s deaths.[9] Far more likely, it simply gestures to the link between mother and young, without further concretization.

In any case, the rhetorical force of Deut 22:6 lies in the fact that it concretizes the martial idiom “mother together with her young” in the image of the mother bird sitting or hovering over her young. Slipping self-consciously between על “on, over” and על “together with,” the verse implicitly characterizes the taking of the mother bird together with her young as akin to the cruelty condemned by the phrase “mother together with her young.”

A Stranger’s Cruelty and a Mother’s Love

But the basis of the prohibition lies in more than a visual pun, as it were, on the martial idiom. In fact, the prohibition may offer insight into the precise nature of the cruelty at work in killing “mother together with her young.” The relationship of the parent, and especially the mother, to its offspring is the very antithesis of cruelty; it is רחמים “mercy.”[10] Lamentations 4:3 can thus claim:

Even jackals offer their breast to nurse their young, but my people have become cruel (אכזר) like ostriches in the desert.[11]

The incidental echo of זר “stranger” in אכזר “cruel”—an echo perceived in Prov 5:9-10—helps to cement the association of mercy with intra-familial beneficence.[12]

Human vs. Animal Cruelty
The special cruelty in killing “mother together with her young” stems from the fact that it targets the relationship that stands in polar contrast to cruelty. In the case of human beings, and the condemnation of cruelty in war, it is enough to point, by means of the martial idiom, to the fact of the parent-child relationship. The bar is set lower when it comes to our interaction with animals. One need not ordinarily take notice of their family bonds. But seeing the mother bird upon its young makes the parent-child relationship impossible to ignore. The image compels one to the think of the mother bird as a parent, and of the eggs or chicks as her young. To then ignore these facts, and take the mother together with her young, is to act cruelly.

Likewise, in chronological rather than spatial terms, to be confronted by the parent and its young in the slaughterhouse on the very same day is to be confronted inescapably with the parental relationship. And thus confronted, the slaughterer must stay his hand.

Mother and Young Together:
The Optics of an Ethical Problem

We may say, then, that in these laws concerning the parental relationship in animals, ethics receives a boost from aesthetics, or from what we call in modern parlance the “optics.” In the case of cruelty toward human beings in war, the togetherness conveyed by the preposition is (likely) abstract. We need nothing more than this abstraction to recognize the cruelty, and recoil from it.

In the case of animals, the preposition must become concrete. Only when the mother is actually upon the chicks or eggs—or when the slaughter occurs on the very same day—does the law perceive cruelty. But the concretization of the preposition, the invocation of optics, arguably exposes the aesthetic or imaginative element inherent in ethical judgments generally, or in any case, in judgements about cruelty.[13] Cruelty is something we know when we see it.

___________________

Dr. Tzvi Novick is the Abrams Chair of Jewish Thought and Culture in the Department of Theology at the University of Notre Dame. His research focuses on law and ethics in rabbinic Judaism. He has also written on topics in the Hebrew Bible and Second Temple Judaism, and on Jewish liturgical poetry (piyyut) from late antiquity.

09/12/2016

[1] In rabbinic literature, as early as the Mishnah (m. Hul. 12:1), the commandment is called שילוח הקן. This term is puzzling, for while the word שילוח is the nominal form of the piel verb תשלח in Deut 22:7, the object of the verb in the verse is האם “the mother,” not הקן “the nest.” The commandment ought therefore to be called שילוח האם. Perhaps שילוח האם was excluded because this term would have called to mind divorce, another context in which שלח is employed in the piel (Deut 24:1). Cf. the liturgical use of the phrase קן ציפור “the bird’s nest” in m. Ber. 5:3, quoted below.

[2] The preliminary vocative, “My people, children of Israel,” is a characteristic feature of Aramaic translation practice (targum) in Palestine—see, e.g., the translations of the Decalogue, wherein the vocative precedes each commandment—and presumably reflects a synagogue Sitz im Leben. Cf. Tanhuma (Warsaw) va-yese 8, which characteristically reverses the pedagogical hierarchy by having God learn mercy from humans. God tells Leah: את רחמנית ואף אני מרחם עליה , “You are a merciful person [in your concern for Rachel], and I too will have mercy upon her.”

[3] The quotation is from Talmud Yerushalmi: According to Ms. Or. 4720 (Scal. 3) of the Leiden University Library with Restorations and Corrections (Jerusalem: Academy of the Hebrew Langauge, 2001), 47. On the Yerushalmi passage and related texts see Eliezer Segal, “Justice, Mercy and a Bird’s Nest,” JJS 42 (1991), 176-95. The Aramaic translation critiqued by R. Yose son of R. Bun so assimilates Lev 22:28 to Deut 22:6-7 that the male animals of Lev 22:28 become, in the translation, females.

[4] It is notable that the only other case, to my knowledge, where God’s mercy is set in contrast with his “measures” is the passage in b. Ber. 7a about the prayer that God himself recites, and that Ishmael b. Elisha recited before God when he entered into the Holy of Holies and saw God sitting on his throne. This prayer calls for God’s mercy to be “rolled” (?; cf. Gen 43:18; b. Pesah. 87a) upon his (other?) “measures,” i.e., that it be God’s dominant attribute. Could R. Yose in fact be rejecting the formulation, “Upon the bird’s nest does your mercy extend” because it is too evocative of quasi-mystical prayers of the sort put forward in b. Ber. 7a?

[5] According to Maimonides, in his Guide for the Perplexed, iii.48, the commandment’s concern is specifically to spare the feelings of the mother bird. This position conveniently supports the distinction that Maimonides makes throughout his philosophical work between an astringently rational intellectual faculty, specific to human beings, and an inferior, imaginative faculty, which underlies emotional expressions and moral judgments, and is also the province of animals. Nahmanides, in his commentary ad Deut 22:6, argues that the Bible is not concerned with the mother bird’s emotional pain but with the human actor’s character. Nahmanides also offers a different explanation for the commandment, rooted in considerations not of mercy but of conservation: “Scripture does not permit us to slaughter in such a way as to uproot the species, even though slaughter of that species is permitted.”

[6] The link between the phrase האם על הבנים in Deut 22:6 and the usage exemplified in Gen 32:12 and Hos 10:14 was well known to ancient exegetes; see, e.g., Gen. Rab. 76:6.

[7] I have modified the NJPS’s rendering to clarify the points of contact among the verses.

[9] Cf. Num 31:8 ואת מלכי מדין הרגו על חלליהם, rendered thus by the NJPS: “Along with their other victims, they slew the kings of Midian.” The NJPS apparently takes the antecedent of the prepositional suffix –הם to be Israel, but as or even more likely, the antecedent is the kings of Midian, and the point of the suffix, in conjunction with the preposition, is to indicate that Israel executes the kings of Midian together with, or even specifically after, or even upon, their slaughtered armies.

[10] For the opposition between רחמים and אכזרי see Prov 12:10; Sifre Deut. 323.

[11] See also Prov 11:17.

[12] By the same token, traditional sources recognize that it is specifically those distant from the experience of raising children who are characteristically cruel. See in particular the baraita in b. Sanh. 36a: “It was taught: We do not appoint to the Sanhedrin an old man, or a eunuch, or one who has no children. R. Judah adds: Also a cruel person.” R. Judah’s addendum in fact exposes the rationale of the other three exclusions: The old man, the eunuch, and the childless man may not judge a crime because, having either never had or long forgotten (per Rashi ad loc.) the experience of, rearing a child, they incline toward cruelty. On “young angels” who are “cruel angels” (מלאכים נערים .. מלאכים אכזרים), see Mek. R. Ish. be-shsalah 6; Mek. R. Sh. ad Ex 14:27. (The text is certain, even though Sifre Deut. 357 worrisomely speaks of “evil angels, … cruel angels” [מלאכים רעים … מלאכים אכזריים].) It is possible that the פרחי כהונה “budding priests,” the priestly ephebes (cf. 2 Macc 4:14) who, according to the rabbis, dispensed violent justice to the wicked in the temple, among other tasks—see t. Sot. 1:7; t. Me‘il. 1:16, and especially m. Sanh. 9:6, and see also Sifre Num. 161—represent the earthly analogues of, or the model for, these cruel, young angels.

[13] See n. 5 above, on Maimonides’ imaginative faculty and its relationship to moral judgments. On the long-standing question of the relationship between ethics and aesthetics; see, e.g., Jerrold Levinson, ed., Ethics and Aesthetics: Essays at the Intersection (Cambridge: Cambridge University Press, 2001).

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